[Congressional Record Volume 153, Number 5 (Wednesday, January 10, 2007)]
[Senate]
[Pages S345-S350]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            MORNING BUSINESS

  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that there now 
be a period of morning business, with Senators permitted to speak 
therein for up to 10 minutes each.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BYRD. Mr. President, I ask unanimous consent to have printed in 
the Record a letter and accompanying section 102(b) report from the 
Office of Compliance Board of Directors.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         Office of Compliance,

                                  Washington, DC, January 4, 2007.
     Hon. Robert C. Byrd,
     President Pro Tempore, U.S. Senate, The Capitol, Washington, 
         DC.
       Dear President Pro Tempore Byrd: Section 102(b)(2) of the 
     Congressional Accountability Act of 1995 (CAA), 2 U.S.C. 
     1302, requires that, ``Beginning on December 31, 1996, and 
     every 2 years thereafter, the Board shall report on (A) 
     whether or to what degree the provisions described in 
     paragraph (1) are applicable or inapplicable to the 
     legislative branch and (B) with respect to provisions 
     inapplicable to the legislative branch, whether such 
     provisions should be made applicable to the the legislative 
     branch. The presiding officers of the House of 
     Representatives and the Senate shall cause each report to be 
     printed in the Congressional Record, and each such report 
     shall be referred to the committees of the House of 
     Representatives and the Senate with jurisdiction.
       The Board of Directors of the Office of Compliance is 
     transmitting herewith the Section 102(b) Report for the 109th 
     Congress. The Board requests that the accompanying Report be 
     published in both the House and Senate versions of the 
     Congressional Record on the first day on which both Houses 
     are in session following receipt of this transmittal.
       Any inquiries regarding the accompanying Notice should be 
     addressed to Tamara Chrisler, Acting Executive Director of 
     the Office of Compliance, 110 2nd Street, S.E., Room LA-200, 
     Washington, D.C. 20540.
           Sincerely,
                                                Susan S. Robfogel,
     Chair of the Board of Directors.
                                  ____



                                         Office of Compliance,

                                Washington, DC, December 21, 2006.
     Hon. Ted Stevens,
     President Pro Tempore of the Senate, U.S. Senate, The 
         Capitol, Washington, DC.
       Dear Mr. Stevens: Pursuant to section 102(b) of the 
     Congressional Accountability Act, I am pleased to announce 
     that the Board of Directors of the Compliance has completed 
     its biennial report. Accompanying this letter is a copy of 
     our section 102(b) report for the 109th Congress.
       The section 102(b) report and its incorporated 
     recommendations are an integral part of the Congressional 
     Accountability Act. As a principle function of the Board, 
     this report provides insight into the ever-changing climate 
     that exemplifies the working environment of the legislative 
     branch. As such, the Board views the submission of this 
     report as the primary method of keeping the Act alive beyond 
     its inception. With this submission, the Board presents its 
     prior recommendations and specifically makes recommendations 
     concerning the need for additional tools and mechanisms to 
     increase the Office's efforts to ensure continued safety and 
     health of legislative branch employees and visitors; as well 
     as the need for regulations in the legislative branch for 
     veterans entering and returning to the workforce.
       With more than ten years of experience living with 
     congressional accountability, the Board and the office are 
     committed to the recommendations we outline in this report. 
     As the sixth such report to Congress, we are seeking 
     appropriate time for review, consultation, and action in the 
     110th Congress.

[[Page S346]]

       On behalf of the Board of Directors, I submit this 
     important document for your review and attention.
           Sincerely,
                                               Tamara E. Chrisler,
                                        Acting Executive Director.

       Office of Compliance Section 102(b) Report, December 2006

       This is the sixth biennial report submitted to Congress by 
     the Board of Directors of the Office of Compliance of the 
     U.S. Congress, pursuant to the requirements of section 102(b) 
     of the Congressional Accountability Act (2 U.S.C. 1302 (b)). 
     Section 102(b) of the Act states in relevant part:
       Beginning on December 31, 1996, and every 2 years 
     thereafter, the Board shall report on (A) whether or to what 
     degree [provisions of Federal law (including regulations) 
     relating to (A) the terms and conditions of employment 
     (including hiring, promotion, demotion, termination, salary, 
     wages, overtime compensation, benefits, work assignments or 
     reassignments, grievance and disciplinary procedures, 
     protection from discrimination in personnel actions, 
     occupational health and safety, and family and medical and 
     other leave) of employees; and (B) access to public services 
     and accommodations] . . . are applicable or inapplicable to 
     the legislative branch, and (B) with respect to provisions 
     inapplicable to the legislative branch, whether such 
     provisions should be made applicable to the legislative 
     branch. The presiding officers of the House of 
     Representatives and the Senate shall cause each such report 
     to be printed in the Congressional Record and each such 
     report shall be referred to the committees of the House of 
     Representatives and the Senate with jurisdiction.
       Bracketed portion from section 102(b)(1).

                              Introduction

       Prior to the enactment of the Congressional Accountability 
     Act of 1995 (CAA), Congress recognized the need to legislate 
     many aspects of the workplace, and it did so by passing laws 
     to address workplace rights and the employment relationship. 
     These laws, however, were not applicable to Congress. 
     Congress had excluded itself and other instrumentalities of 
     the legislative branch from the requirements of these laws. 
     Passage of the CAA, with nearly unanimous approval, in the 
     opening days of the 104th Congress, reflected a national 
     consensus that Congress must live under the laws it enacts 
     for the rest of society.
       The CAA is not meant to be static. The Act intended that 
     there be an ongoing, vigilant review of federal law to ensure 
     that Congress continue to apply to itself--where 
     appropriate--the labor, employment, health, and safety laws 
     it passes. To further this goal, the Board of Directors of 
     the Office of Compliance (``Board'') was tasked with the 
     responsibility of reviewing federal laws each Congress to 
     make recommendations on how the CAA could be expanded. Since 
     its creation, the Board has duly submitted biennial Reports 
     to Congress, starting in 1996, detailing the limited and 
     prudent amendments that should be made to the CAA. There was 
     also an Interim Report in 2001, regarding Section 508 of the 
     Rehabilitation Act of 1973. In past reports, the Board has 
     taken a broad approach in presenting its recommendations to 
     amend the Congressional Accountability Act, and has 
     encouraged Congress to consider and act upon those 
     recommendations. By including Appendices A through C in this 
     Report, the Board incorporates these prior recommendations as 
     part of this Report: amendments to the Rehabilitation Act, 
     title II and title III of the Civil Rights Act, record-
     keeping and notice posting, jury duty, bankruptcy, 
     garnishment, and employee protection provisions of 
     environmental statutes. The Board continues to ask that these 
     prior recommendations be implemented.
       Now that Congress has had substantial time to reflect on 
     the contents of the Board's prior reports, it is critical 
     that Congress continue the example set in 1995 with the 
     enactment of the original provisions of the CAA. Without 
     action on the Board's recommendations, the worthy goal of the 
     Congressional Accountability Act gradually may be eroded.
       The overwhelming bipartisan support for the CAA's passage 
     in 1995 is a testament to the importance of--and support 
     for--the principles the CAA embodies, both in Congress and in 
     the electorate as a whole. While recognizing the enormous 
     importance of many of the other issues faced today by 
     Congress, the Board is hopeful that issuance of this 2006 
     Section 102(b) Report will result in legislative action to 
     finally implement these recommendations, so that the CAA 
     remains current with the employment needs of the legislative 
     branch.


                           Executive Summary

       In this 2006 Report, the Board is prioritizing its 
     recommendations, without in any way diminishing the 
     importance of the recommendations made in prior Reports. In 
     this current Report, the Board focuses on two areas of vital 
     and immediate concern to the covered community--safety and 
     health, and veterans' rights--and urges Congress to take 
     action on them.
       The Office of Compliance Office of the General Counsel 
     (``OGC'') is responsible for ensuring safety and health of 
     legislative branch employees through the enforcement of the 
     provisions of the Occupational Safety and Health Act 
     (``OSHA''). This responsibility includes inspection of the 
     covered community, which the Office of the General Counsel 
     performs in collaboration with employing offices. While 
     enormous progress has been achieved by the Office of the 
     Architect of the Capitol (``AOC'') and other employing 
     offices in improving health and safety conditions, there 
     remain circumstances where progress will be enhanced if the 
     OGC is provided specific tools to perform: whistle blower and 
     similar retaliation protection, temporary restraining orders, 
     investigatory subpoenas, and recognition by the responsible 
     party for health and safety violations in covered facilities. 
     With these tools, the Office of the General Counsel would be 
     better positioned to ensure that the covered community is a 
     safe and healthy one for its employers and employees, as well 
     as its visitors.
       Congress has enacted laws to ensure that soldiers with 
     civilian employment will not be penalized for their time 
     spent away from their employers while serving in the 
     military. Through the enactment of these laws, Congress 
     ensured that military service will not prevent individuals 
     from remaining professionally competitive with their civilian 
     counterparts. The Veterans' Employment Opportunities Act 
     (``VEOA'') and the Uniformed Services Employment and 
     Reemployment Act (``USERRA'') currently provide protections 
     for military personnel entering and returning to federal and 
     other civilian workforces. Under VEOA, Congress has enacted 
     protections for these soldiers, so that in certain 
     circumstances, they receive a preference for selection to 
     federal employment. Regulations for these laws have been 
     implemented in the executive branch, and the Board encourages 
     Congress to implement corresponding regulations in the 
     legislative branch.


                            Recommendations

     I. Whistle Blower Protection Act Application to the CAA
       Retaliation protections
       Over the years, the Office of Compliance has received 
     numerous inquiries from legislative branch employees about 
     their legal rights following their having reported 
     allegations of employer wrongdoing or mismanagement. 
     Unfortunately, these employees are not currently protected 
     from employment retaliation by any law. The retaliation 
     provisions of the CAA limit protection to employees who, in 
     general, exercise their rights under the statute. Whistle 
     blower protections are intended specifically to prevent 
     employers from taking retaliatory employment action against 
     an employee who discloses information which he or she 
     believes evidences a violation of law, gross mismanagement, 
     or substantial and specific danger to public health or 
     safety.
       The Whistle Blower Protection Act (``WPA'') prohibits 
     executive branch personnel decision makers from taking any 
     action to:
       (3) coerce the political activity of any person (including 
     the providing of any political contribution or service), or 
     take any action against any employee or applicant for 
     employment as a reprisal for the refusal of any person to 
     engage in such political activity;
       (4) deceive or willfully obstruct any person with respect 
     to such person's right to compete for employment;
       (5) influence any person to withdraw from competition for 
     any position for the purpose of improving or injuring the 
     prospects of any other person for employment;
       (6) grant any preference or advantage not authorized by 
     law, rule, or regulation to any employee or applicant for 
     employment (including defining the scope or manner of 
     competition or the requirements for any position) for the 
     purpose of improving or injuring the prospects of any 
     particular person for employment;
       (7) appoint, employ, promote, advance, or advocate for the 
     appointment, promotion, advancement, in or to a civilian 
     position any individual who is a relative (as defined in 
     section 3110(a)(3) of this title) of such employee if such 
     position is in the agency in which the employee is serving as 
     a public official (as defined in section 3110(a)(2) of this 
     title) or over which such employee exercises jurisdiction or 
     control as such an official;
       (8) take or fail to take, or threaten to take or fail to 
     take, a personnel action with respect to any employee or 
     applicant for employment because of--
       (A) any disclosure of information by an employee or 
     applicant for employment because of--
       (i) a violation of any law, rule, or regulation, or
       (ii) gross mismanagement, a gross waste of funds, an abuse 
     of authority, or a substantial and specific danger to public 
     health or safety, if such disclosure is not specifically 
     prohibited by law and if such information is not specifically 
     required by Executive Order to be kept secret in the interest 
     of national defense or the conduct of foreign affairs; or
       (B) any disclosure to the Special Counsel, or to the 
     Inspector General of an agency or another employee designated 
     by the head of the agency to receive such disclosures of 
     information which the employee or applicant reasonably 
     believes evidences--
       (i) a violation of any law, rule, or regulation, or
       (ii) gross mismanagement, a gross waste of funds, an abuse 
     of authority, or a substantial and specific danger to public 
     health or safety, if such disclosure is not specifically 
     prohibited by law and if such information is not specifically 
     required by Executive Order to be kept secret in the interest 
     of national defense or the conduct of foreign affairs;
       (9) take or fail to take, or threaten to take or fail to 
     take, any personnel action against any employee or applicant 
     for employment because of--

[[Page S347]]

       (A) the exercise of any appeal, complaint, or grievance 
     right granted by any law, rule, or regulation;
       (B) testifying for or otherwise lawfully assisting any 
     individual in the exercise of any right referred to in 
     subparagraph (A);
       (C) cooperating with or disclosing information to the 
     Inspector General of an agency, or the Special Counsel, in 
     accordance with applicable provisions of law; or
       (D) for refusing to obey an order that would require the 
     individual to violate a law;
       (10) discriminate for or against any employee or applicant 
     for employment on the basis of conduct which does not 
     adversely affect the performance of the employee or applicant 
     or the performance of others; except that nothing in this 
     paragraph shall prohibit an agency from taking into account 
     in determining suitability or fitness any conviction of the 
     employee or applicant of any crime under the laws of any 
     State or the District of Columbia, or of the United 
     States.\1\
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     \1\ Footnotes appear at end of report.
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       Over the years, legislative branch employees have proven 
     essential in informing the General Counsel of the possible 
     existence of serious hazards that may affect the safety and 
     health of employees, management representatives, and members 
     of the public that would otherwise not come to his attention. 
     In order to assure the free flow of this information, it is 
     incumbent upon Congress to protect employees from 
     intimidation and retaliation when they exercise their rights 
     to report and allege violations.
       On July 17, 2006, Senator Chuck Grassley introduced a bill 
     \2\ to Congress that would amend the Congressional 
     Accountability Act to give legislative branch employees some 
     of the whistle blower protection rights that are available to 
     executive branch employees. In the executive branch, 
     employees can take allegations of employment reprisal based 
     on whistle blowing to the Office of the Special Counsel or 
     can bring an individual action directly before the Merit 
     Systems Protection Board.\3\ As the bill is written, 
     legislative branch employees would bring such matters to the 
     Office of Compliance's dispute resolution program. Although 
     this program provides a mechanism for employees to bring a 
     complaint, the employees would have to prosecute these very 
     technical issues themselves, or incur the cost of hiring an 
     attorney to litigate these issues. Employees of the executive 
     branch do not bear such a burden. To assure that whistle 
     blower protection rights are effectively vindicated, it is 
     imperative that the General Counsel be granted the same 
     authority to investigate and prosecute OSHA-type violations 
     of the CAA, as is provided under other remedial labor laws.
       Executive agencies that are required to enforce labor and 
     employment rights are often given explicit statutory 
     authority to conduct investigations and litigation respecting 
     charges of employer intimidation and retaliation of 
     employees. For example, the General Counsel of the Federal 
     Labor Relations Authority may investigate discrimination 
     based on the filing of an unfair labor practice.\4\ Under the 
     Occupational Safety and Health Act, the Secretary of Labor is 
     given very clear authority to investigate and prosecute 
     reprisals.\5\ The Equal Employment Opportunity Commission is 
     granted authority to initiate charges and conduct 
     investigations into claims of discrimination.\6\ The National 
     Labor Relations Act also grants to its General Counsel the 
     authority to issue a complaint upon the filing of an employee 
     charge of retaliation.\7\
       Covered employees who have sought information from the 
     Office of Compliance respecting their substantive rights 
     under the safety and health provisions of the CAA have 
     expressed concern about their exposure when they come forward 
     to provide evidence in such investigations. They have also 
     indicated reluctance or financial inability to shoulder the 
     litigation burden without the support of the Office of the 
     General Counsel investigative process and enforcement 
     procedures.
       The Board of Directors believes that the ability of the 
     General Counsel to investigate and prosecute retaliation in 
     the OSH process would effectively serve to relieve employees 
     of these burdens. It would also preserve confidence in the 
     CAA and empower legislative branch employees to exercise 
     their rights without fear of adverse action in reprisal for 
     their protected activities.
       Protection from solicitation of recommendations
       The Board believes that the subsection (b)(2) rule of the 
     Whistle Blower Protection Act should be made applicable to 
     all legislative branch employing offices, other than the two 
     houses of Congress and the entities listed in section 
     220(e)(2)(A)-(E) of the CAA.
       The Board urges Congress to discourage ``political'' 
     recommendations in the filling of covered positions. 
     Specifically, subsection (b)(2) of the Whistle Blower 
     Protection Act provides that anyone with personnel authority 
     may not: ``solicit or consider any recommendation or 
     statement, oral or written, with respect to any individual 
     who requests or is under consideration for any personnel 
     action unless such recommendation or statement is based on 
     the personal knowledge or records of the person furnishing 
     it and consists of--(A) an evaluation of the work 
     performance, ability, aptitude, or general qualifications 
     of such individual; or (B) an evaluation of the character, 
     loyalty, or suitability of such individual . . .''
       The Board recommends that Congress apply this restriction 
     to anyone with personnel authority in any legislative branch 
     employing office, other than the two houses of Congress and 
     the entities listed in section 220(e)(2)(A)-(E) of the CAA.
     II. Increased safety and health compliance tools
       Temporary restraining orders
       The Occupational Safety and Health Act is applied, in part, 
     to the legislative branch through Section 215(b) of the 
     Congressional Accountability Act. Under this section, the 
     remedy for a violation of the CAA is a corrective order 
     similar to such an order granted under the remedial section 
     of the OSH Act. Among other things, the OSH Act authorizes 
     the Secretary of Labor to seek a temporary restraining order 
     in district court in the case of imminent danger. Such 
     enforcement authority is necessary for the General Counsel of 
     the Office of Compliance to ensure that safety and health 
     violations are remedied expeditiously. The General Counsel 
     takes the position that although Section 215(b) of the CAA 
     does not expressly provide preliminary injunctive relief as a 
     remedy, such authority is implied by the Act's terms. Certain 
     employing offices, as well as other stakeholders, however, 
     differ with this interpretation, as the language is not 
     stated directly in the Act. Accordingly, the Board seeks to 
     amend the current language of the Act to alleviate all 
     ambiguity and to make clear the General Counsel's authority 
     to seek such relief.
       Express authority to seek preliminary injunctive relief is 
     essential to the General Counsel's ability to eliminate 
     promptly all potential workplace hazards. Although a 
     situation has not been presented yet where a court injunction 
     was necessary to resolve a case of imminent danger, the 
     General Counsel can foresee the very likelihood of having to 
     do so. In fiscal year 2006, the General Counsel increased his 
     efforts to remedy two serious violations which posed imminent 
     danger to workers: unabated safety violations which existed 
     in the Capitol Power Plant utility tunnels since before 1999, 
     and the lack of safety shoring for AOC workers in trenches 
     surrounding Library of Congress buildings. Fortunately, the 
     prompt filing of a formal complaint led the AOC to implement 
     immediate interim abatement measures to protect workers in 
     the tunnels from imminent harm. In addition, the filing of a 
     citation for the safety shoring violation prompted the AOC to 
     take immediate steps to install appropriate shoring to 
     protect its employees.
       In both of these instances, the need for injunctive relief 
     was obviated due to the prompt and voluntary compliance of 
     the AOC. However, in other situations, employing offices may 
     not so readily accept responsibility for correcting an 
     imminent safety hazard. For example, the increased use of 
     contractors to perform construction and repair work on 
     Capitol Hill creates situations where the responsibility for 
     assuring safe conditions may not be as clear, or as readily 
     accepted, by an employing office. Cases of that nature 
     demonstrate the need for the availability of injunctive 
     relief to ensure the immediate and ongoing safety of 
     employees and members of the public pending resolution of 
     issues of responsibility and cost.
       The Board urges Congress to recognize the General Counsel's 
     need to have the authority to seek preliminary injunctive 
     relief. Although implicitly provided in the Act, the current 
     language under Section 215(b) creates ambiguity as to whether 
     such authority has been granted to the General Counsel. The 
     Board recommends that the CAA be amended to clarify that the 
     General Counsel has the standing to seek a temporary 
     restraining order in Federal district court and that the 
     court has jurisdiction to issue the order.
       Investigatory subpoenas
       The General Counsel of the Office of Compliance is 
     responsible for conducting health and safety inspections in 
     covered offices in the legislative branch. In implementation 
     of this mandate, the General Counsel is granted many, but not 
     all, of the same authorities that are granted to the 
     Secretary of Labor under section 8 of the Occupational Safety 
     and Health Act.\8\ One of the significant authorities granted 
     to the Secretary of Labor is that of issuing investigatory 
     subpoenas in aid of inspections. Other federal agencies, such 
     as the National Labor Relations Board and the Federal Labor 
     Relations Authority, likewise are given such authority in 
     implementation of their authority to investigate complaints. 
     However, the Congressional Accountability Act does not grant 
     to the General Counsel the authority to require the 
     attendance of witnesses and the production of evidence in 
     furtherance of his investigations.
       While most employing offices do not directly refuse to 
     provide requested information during the General Counsel's 
     investigations, significant delays in providing information 
     are, unfortunately, not unusual. The lack of authority to 
     compel the prompt release of information and witnesses 
     from employing offices hampers the ability of the General 
     Counsel to enforce health and safety regulations. To 
     conduct a thorough workplace inspection, the General 
     Counsel must interview witnesses and examine information 
     that may reside solely within the possession of the 
     employing office, and not otherwise readily available to 
     employees, the public, or the General Counsel. Absent the 
     authority to issue investigatory subpoenas, an employing 
     office may, with impunity,

[[Page S348]]

     refuse or simply stall in responding to the General 
     Counsel's requests for information. Such actions would 
     hinder investigations and may exacerbate potential health 
     and safety hazards. Recently, an employing office argued 
     that the General Counsel was not entitled to the records 
     of results of testing for hearing damage performed on 
     legislative employees. The General Counsel was without an 
     efficient mechanism to gain access to this information.
       Currently, the only means to compel production of documents 
     or testimony when cooperation is not forthcoming is to issue 
     a citation and a complaint, and institute legal proceedings 
     against the employing office. Besides being costly, this 
     process is counterproductive to the General Counsel's efforts 
     to maintain and further a collaborative relationship with 
     employing offices. In addition, the inherent delays of 
     litigation may have the effect of exposing employees and the 
     public to unabated hazard and significant risk of exposure or 
     injury. Prompt production of information or access to 
     witnesses allows the General Counsel to collaborate with 
     employing offices and make an informed decision and assess 
     risks and hazards. This authority will directly enhance the 
     ability of the General Counsel to carry out his statutory 
     duty to maintain a safe and healthy workplace.
       The Office of the Architect of the Capitol is responsible 
           for safety and health violations in covered facilities
       In its Report on Occupational Safety and Health Inspections 
     for the 108th Congress, the General Counsel raised a concern 
     regarding enforcing compliance with the OSH Act where work is 
     performed by contractors hired by the Architect of the 
     Capitol. In the 108th Biennial Report, three specific 
     incidents were cited wherein AOC contractors created 
     hazardous situations that posed significant risk to property 
     in one instance, and severe bodily injury to employees and 
     the public in the other two. The latter two conditions were 
     corrected by the AOC, even though the AOC asserted it had no 
     obligation to do so. In the other situation, a citation was 
     issued by the General Counsel; however, the AOC has contested 
     this citation, asserting that it has limited, if any, 
     responsibility to monitor or ensure compliance with OSHA 
     regulations and safety standards whenever work is performed 
     by contractors.
       OSHA, rather than the Office of Compliance General Counsel, 
     has jurisdiction over AOC private sector contractors. As the 
     AOC increasingly relies on such contractors to perform its 
     construction and repair work, it is foreseeable that safety 
     and health enforcement in the legislative branch could 
     increasingly devolve to OSHA rather than the Office of 
     Compliance General Counsel. Were the AOC to prevail in its 
     contention that it was not responsible for hazards created by 
     its contractors, the ability of the General Counsel to 
     protect legislative branch employees would be severely 
     undermined. Moreover, divided jurisdiction over the 
     elimination of hazardous conditions that affect legislative 
     branch employees would appear to be contrary to the purpose 
     of the CAA.
       The General Counsel's jurisdiction to hold an employing 
     office accountable for complying with safety standards does 
     not turn on whether the employing office performs its work 
     directly or through the use of a contractor. Otherwise, the 
     health and safety in much of the legislative branch would 
     depend on the diligence and skill of independent contractors 
     rather than that of the Architect of the Capitol. The 
     Government Accountability Office recently expressed a similar 
     concern that the ``AOC had not fully exercised its authority 
     to have the contractors take corrective actions to address 
     recurring safety concerns'' in regard to construction at the 
     Capitol Visitor Center.\9\
       OSHA has a ``Multi-Employer Citation Policy,'' \10\ under 
     which employers can be considered both a ``controlling and 
     exposing employer engaged in construction and repair work.'' 
     This policy requires that these multi-employers be held 
     accountable and responsible for any safety violations in 
     their facilities. Because the AOC is charged with the 
     responsibility for the supervision and control of all 
     services necessary for the protection and care of the Capitol 
     and the Senate and House Office Buildings, the AOC would be 
     considered a multi-employer, under OSHA's definition, and 
     thereby accountable and responsible for any safety violations 
     in its facilities.\11\ The Board of Directors encourages 
     Congress to adopt OSHA's policy to ensure the uniform pattern 
     of enforcement throughout the legislative branch.
       The Board urges Congress to take a realistic look at the 
     safety and health concerns in the covered community. Much 
     work has been done, and progress continues to be made, to 
     ensure that Congress provides a safe and healthy environment 
     for its employees and visitors. In order to ensure this 
     continued progress, there are certain mechanisms that must 
     be in place for the General Counsel of the Office of 
     Compliance to ensure that safety and health risks are at a 
     minimum and are thoroughly and expeditiously addressed. 
     The Board encourages Congress to allow the General Counsel 
     to implement these tools to meet this goal.
     III. Veterans' rights
       Veterans' Employment Opportunities Act
       Since the end of the Civil War, the United States 
     Government has granted veterans a certain degree of 
     preference in federal employment, in recognition of their 
     duty to country, sacrifice, and exceptional capabilities and 
     skills. Initially, these preferences were provided through a 
     series of statutes and Executive Orders. In 1944, however, 
     Congress passed the first law that granted our service men 
     and women preference in federal employment: the Veterans' 
     Preference Act of 1944.\12\ The Veterans' Preference Act 
     provided that veterans who are disabled or who served in 
     military campaigns during specified time periods are 
     ``preference eligible'' veterans and would be entitled to 
     preference over non-veterans (and over non-preference-
     eligible veterans) in decisions involving selections and 
     retention in reductions-in-force.
       In 1998, Congress passed the Veterans Employment 
     Opportunities Act (``VEOA''), \13\ which ``strengthen[s] and 
     broadens'' \14\ the rights and remedies available to military 
     veterans who are entitled to preferences in federal 
     employment. In particular, Congress clearly stated in the law 
     itself that certain ``rights and protections'' of veterans' 
     preference law provisions for certain executive branch 
     employees, ``shall apply'' to certain ``covered employees'' 
     in the legislative branch.\15\
       Initially, the Board published an Advanced Notice of 
     Proposed Rulemaking for VEOA regulations on February 28, 
     2000, and March 9, 2000. Upon consideration of the comments 
     received, the Board changed its approach and published a 
     Notice of Proposed Rulemaking on December 6, 2001. Since that 
     time, the Board has engaged in extensive discussions with 
     stakeholders to obtain input and suggestions into the 
     drafting of the regulations. The Board is mindful that 
     stakeholder input is critical in ensuring that the proposed 
     regulations capture the particular workings and procedures of 
     the legislative branch. To that end, the Board is committed 
     to investing as much time as is necessary to promulgate and 
     implement the VEOA regulations.
       One of the most critical aspects of drafting these 
     regulations has been to acknowledge the longstanding and 
     significant differences between the personnel policies and 
     practices, as well as the history, of the legislative branch 
     and the executive branch. In particular, the executive branch 
     distinguishes between employees in the ``competitive 
     service'' and the ``excepted service,'' often with differing 
     personnel rules applying to these two services. The 
     legislative branch has no such classification system and 
     hence, no dichotomy.
       Although the CAA mandates application to the legislative 
     branch of certain VEOA provisions originally drafted for the 
     executive branch, the Board notes the central distinction 
     made in the underlying statute: certain veterans' preference 
     protections (regarding hiring) applied only to executive 
     branch employees in the ``competitive'' service, while others 
     (governing reductions in force and transfers) applied both to 
     the ``competitive'' and ``excepted'' service. For example, 
     the hiring practice in the executive branch includes a 
     numeric rating and ranking process. Such process includes a 
     point-preference for certain veterans. Because no such rating 
     and ranking process exists in the legislative branch, the 
     application of the point-preference had to be adjusted to 
     properly fit the particular practices of the legislative 
     branch.
       The extensive discussions with various stakeholders across 
     Congress and the legislative branch have raised these issues 
     and have provided a forum in which to discuss how best to 
     address these unsuited areas of the regulations. The 
     suggestions made and comments received by stakeholders have 
     allowed the Board to engage in thoughtful deliberation and 
     careful consideration of the particular needs of the 
     legislative branch. Accordingly, the Board has crafted 
     proposed regulations that it believes will fit the practices 
     and procedures of the varying entities in the covered 
     community.
       Uniformed Services Employment and Re-employment Rights Act
       The Uniformed Services Employment and Re-employment Rights 
     Act (``USERRA'') was enacted in December 1994, and the 
     Department of Labor submitted regulations for the executive 
     branch in 2005. USERRA's provisions ensure that entry and re-
     entry into the civilian workforce are not hindered by 
     participation in non-career military service. USERRA 
     accomplishes that purpose by providing rights in two kinds of 
     cases: discrimination based on military service, and denial 
     of an employment benefit as a result of military service.
       Currently, the Board is engaged in drafting proposed 
     regulations for USERRA's application to the legislative 
     branch. During the 110th Congress, the Board will present its 
     proposed regulations to stakeholders and engage in similar 
     consultations as with the proposed VEOA draft regulations. 
     The Board anticipates that this interactive and collaborative 
     approach will allow the Board, as with the VEOA draft 
     regulations, to ascertain the concerns and particular demands 
     of the legislative branch with respect to application of 
     these regulations.
       There is a need for both VEOA and USERRA regulations in the 
     legislative branch. Congress has seen fit to provide service 
     men and women certain protections in federal civilian 
     employment, and without adopted regulations, these 
     protections are without legal effect in the legislative 
     branch. The particular procedures and practices in the 
     legislative branch necessitate

[[Page S349]]

     regulations written especially for the legislative branch. 
     The Board encourages Congress to adopt these regulations, 
     once proposed, so that VEOA and USERRA protections can be 
     provided specifically to employees of the legislative branch 
     with regulations suitable to the needs of the covered 
     community.


                               Conclusion

       As the tenth anniversary of the Congressional 
     Accountability Act of 1995 has now passed, it is time for a 
     comprehensive analysis and update of the law to ensure that 
     it continues to reflect the commitment by the lawmakers of 
     this nation to democratic accountability.
       With this 102b Report, the Board of Directors of the Office 
     of Compliance urges the leadership of both houses of Congress 
     to seriously consider the recommendations included in this 
     report. The Board encourages Congress to look at the recent 
     activities in the covered community to recognize the need for 
     the implementation of these recommendations. In particular, 
     the efforts made by the Office of the General Counsel of the 
     Office of Compliance and the Office of the Architect of the 
     Capitol to eliminate safety and health hazards that exist in 
     the covered community have been successful due to the 
     collaborative nature of the approach to the problem. However, 
     certain safety issues and certain hazards may only be 
     successfully addressed by the use of other mechanisms, such 
     as specific retaliation protections for whistle blowers, 
     preliminary injunctive relief, investigative subpoenas, and 
     the General Counsel's ability to investigate and prosecute 
     OSH claims of retaliation.
       A fair workplace consists of fair treatment for its 
     applicants and employees who serve in the military. The 
     legislative branch attracts and employs many men and women 
     who have collateral military responsibility. Congress has 
     enacted laws which ensure that these individuals receive the 
     same treatment as their civilian counterparts. Those service 
     men and women who make application for federal employment in 
     the legislative branch and those individuals returning from 
     active duty must be assured, through appropriate regulation, 
     that their service in the military will not hinder them from 
     serving in their country's legislative branch of government.
       The Board also encourages the leadership to increase 
     Congress's compliance with section 102(b)(3) of the CAA. 
     Section 102(b)(3) requires that every House and Senate 
     committee report accompanying a bill or joint resolution that 
     impacts terms and conditions of employment or access to 
     public services or accommodations must ``describe the manner 
     in which the provisions of the bill or joint resolution apply 
     to the legislative branch'' or ``in the case of a provision 
     not applicable to the legislative branch, include a statement 
     of the reasons the provision does not apply.'' Congress has 
     made efforts to include such language in proposed bills, and 
     the Board encourages its continued effort.
       This Board, its executive appointees, and the staff of the 
     Office of Compliance are prepared to work with the 
     leadership, our oversight committees, other interested 
     Members, and instrumentalities in Congress and the 
     legislative branch to make these recommendations part of the 
     Congressional Accountability Act during the 110th Congress.
           Respectfully submitted,
     Susan S. Robfogel, Chair.
     Barbara L. Camens.
     Alan V. Friedman.
     Roberta L. Holzwarth.
     Barbara Childs Wallace.


                               Appendix A

     Employment and civil rights which still do not apply to 
         Congress or other legislative branch instrumentalities
       The statutes below, with the exception of Section 508 of 
     the Rehabilitation Act, were all first identified by the 
     Board in 1996 as not included among the laws which were 
     applied to Congress through the Congressional Accountability 
     Act of 1995. The absence of section 508 of the Rehabilitation 
     Act was first identified in our 2001 Interim Report to 
     Congress. We here repeat the recommendations--made in our 
     Reports of 1996, 1998, 2000, 2002, and 2004, as well as those 
     of the Interim 2001 Report--that these statutes should also 
     be applied to Congress and the legislative branch through the 
     Act.
       The 1998 amendments to section 508 of the Rehabilitation 
           Act of 1973 (29 U.S.C. 794d)
       In November 2001, the Board submitted an Interim Section 
     102(b) Report to Congress regarding the 1998 amendments to 
     the Rehabilitation Act of 1973 in which the Board urged 
     Congress to make those amendments applicable to itself and 
     the legislative branch. The purpose of the 1998 amendments is 
     to: ``require each Federal agency to procure, maintain, and 
     use electronic and information technology that allows 
     individuals with disabilities the same access to technology 
     as individuals without disabilities.'' [Senate Report on S. 
     1579, March 1998]
       As of this time, some five years later, software and other 
     equipment which is ``508 compliant'' is readily available and 
     in use by some employing offices. The Board encourages 
     consistent use of these technologies so that individuals with 
     impairments may have the same opportunities to access 
     materials as others.
       The Board reiterates its recommendation that Congress and 
     the legislative branch, including the General Accounting 
     Office, Government Printing Office, and Library of Congress, 
     be required to comply with the mandates of section 508.
       Titles II and III of the Civil Rights Act of 1964 (42 
           U.S.C. Sec. Sec. 2000a to 2000a-6, 2000b to 2000b-3)
       These titles prohibit discrimination or segregation on the 
     basis of race, color, religion, or national origin regarding 
     the goods, services, facilities, privileges, advantages, and 
     accommodations of ``any place of public accommodation'' as 
     defined in the Act. Although the CAA incorporated the 
     protections of titles II and III of the ADA, which prohibit 
     discrimination on the basis of disability with respect to 
     access to public services and accommodations,\16\ it does not 
     extend protection against discrimination based upon race, 
     color, religion, or national origin with respect to access 
     to public services and accommodations. For the reasons set 
     forth in the 1996, 1998 and 2000 Section 102(b) Reports, 
     the Board has determined that the rights and protections 
     afforded by titles II and III of the Civil Rights Act of 
     1964 against discrimination with respect to places of 
     public accommodation should be applied to employing 
     offices within the legislative branch.
       Prohibition against discrimination on the basis of jury 
           duty (28 U.S.C. Sec. 1875)
       Section 1875 provides that no employer shall discharge, 
     threaten to discharge, intimidate, or coerce any permanent 
     employee by reason of such employee's jury service, or the 
     attendance or scheduled attendance in connection with such 
     service, in any court of the United States. This section 
     currently does not cover legislative branch employment. For 
     the reasons set forth in the 1996, 1998 and 2000 Section 
     102(b) Reports, the Board has determined that the rights and 
     protections against discrimination on this basis should be 
     applied to employing offices within the legislative branch.
       Prohibition against discrimination on the basis of 
           bankruptcy (11 U.S.C. Sec. 525)
       Section 525(a) provides that ``a governmental unit'' may 
     not deny employment to, terminate the employment of, or 
     discriminate with respect to employment against, a person who 
     is or has been a debtor under the bankruptcy statutes. This 
     provision currently does not apply to the legislative branch. 
     For the reasons stated in the 1996, 1998 and 2000 Section 
     102(b) Reports, the Board recommends that the rights and 
     protections against discrimination on this basis should be 
     applied to employing offices within the legislative branch.
       Prohibition against discharge from employment by reason of 
           garnishment (15 U.S.C. Sec. 1674(a))
       Section 1674(a) prohibits discharge of any employee because 
     his or her earnings ``have been subject to garnishment for 
     any one indebtedness.'' This section is limited to private 
     employers, so it currently has no application to the 
     legislative branch. For the reasons set forth in the 1996, 
     1998 and 2000 Section 102(b) Reports, the Board has 
     determined that the rights and protections against 
     discrimination on this basis should be applied to employing 
     offices within the legislative branch.


                               appendix b

     Regulatory enforcement provisions for laws which are already 
         applicable to the legislative branch under the act
       Record-keeping and notice-posting requirements of the 
           private sector CAA laws
       As mentioned in its 1998, 2000, 2002, and 2004 Reports, 
     experience in the administration of the Act leads the Board 
     to recommend that all currently inapplicable record-keeping 
     and notice-posting provisions be made applicable under the 
     CAA. For the reasons set forth in its prior reports of 1998, 
     2002, and 2004, the Board recommends that the Office be 
     granted the authority to require that records be kept and 
     notices posted in the same manner as required by the agencies 
     that enforce the provisions of law made applicable by the CAA 
     in the private sector.
       Other enforcement authorities exercised by the agencies 
           that implement the CAA laws for the private sector
       To further the goal of parity, the Board also recommends 
     that Congress grant the Office the remaining enforcement 
     authorities that executive branch agencies utilize to 
     administer and enforce the provisions of law made applicable 
     by the CAA in the private sector. Implementing agencies in 
     the executive branch have investigatory and prosecutorial 
     authorities with respect to all of the private sector CAA 
     laws, except the WARN Act. Based on the experience and 
     expertise of the Office, granting these same enforcement 
     authorities would make the CAA more comprehensive and 
     effective. By taking these steps to live under full agency 
     enforcement authority, the Congress will strengthen the bond 
     that the CAA created between the legislator and the 
     legislated.


                               appendix c

     Employee protection provisions of environmental statutes
       Since its 1996 Report, the Board has addressed the 
     inclusion of employee protection provisions of a number of 
     statutory schemes: the Toxic Substances Control Act, Clean 
     Water Act, Safe Drinking Water Act, Energy Reorganization 
     Act, Solid Waste Disposal Act/Resources Conservation Recovery 
     Act, Clean Air Act, and Comprehensive Environmental Response, 
     Compensation and Liability Act. In its 1996 Section 102(b) 
     Report, the

[[Page S350]]

     Board stated: ``It is unclear to what extent, if any, these 
     provisions apply to entities in the Legislative Branch. 
     Furthermore, even if applicable or partly applicable, it is 
     unclear whether and to what extent the Legislative Branch has 
     the type of employees and employing offices that would be 
     subject to these provisions. Consequently, the Board reserves 
     judgment on whether or not these provisions should be made 
     applicable to the Legislative Branch at this time.''
       Further, in the 1998 Report the Board concluded that, while 
     it remained unclear whether some or all of the environmental 
     statutes apply to the legislative branch, ``[t]he Board 
     recommends that Congress should adopt legislation clarifying 
     that the employee protection provisions in the environmental 
     protection statutes apply to all entities within the 
     Legislative Branch.''
       In the 2002 and 2004 Reports, the Board explicitly analyzed 
     these protections and recommended that the employee 
     protection provisions of these acts be placed within the CAA 
     and applied to all covered employees, including employees of 
     the Government Accountability Office, Government Printing 
     Office, and Library of Congress. The Board reiterates those 
     recommendations herein, including its recommendation to 
     eliminate the separation of powers conflict inherent in 
     enforcing these statutes, and urges Congress to include such 
     amendments to the Act.


                          Contact Information

       Office of Compliance, Room LA 200, John Adams Building, 110 
     Second Street, SE, Washington, DC 20540-1999, t/ 202-724-9250 
     tdd/ 202-426-1912 f/ 202-426-1913. Recorded Information Line/ 
     202-724-9260 www.compliance.gov.


 Endnotes

       \1\ Subsections (b)(11) and (b)(12) refer to ``competitive 
     service,'' merit systems principles, and other specific 
     personnel matters within the . . . .
       \2\ S. 3676, 109th Cong. (2006)
       \3\ See 5 U.S.C. 1201 et seq.
       \4\ See 5 U.S.C. Sec. 7118(a)(1)
       \5\ See 29 U.S.C. Sec. 660(c)(2). See also Federal Mine 
     Safety and Health Act, 30 U.S.C. Sec. 815 which grants the 
     Secretary of Labor the authority to prosecute a 
     discrimination claim before the Federal Mine Safety and 
     Health Review Commission.
       \6\ These procedures do not apply to federal sector equal 
     employment opportunity.
       \7\ 29 U.S.C. Sec. 158(a)(4); Sec. 160(b).
       \8\ 29 U.S.C. Sec. 657.
       \9\ See ``Testimony of David M. Walker, Comptroller General 
     of the United States Before the Subcommittee on the 
     Legislative Branch, Committee on Appropriations, U.S. 
     Senate'' (May 17, 2005), p. 9.
       \10\ OSHA Directive CPL 2-0.124, December 10, 1999.
       \11\ Id, Sections X(c) and X(e).
       \12\ Act of June 27, 1944, ch. 287, 58 Stat. 387, amended 
     and codified in various provisions of Title 5 of the United 
     States Code.
       \13\ Pub. L. 105-339, 112 Stat. 3186 (October 31, 1998).
       \14\ Sen. Rept. 105-340, 105 Cong., 2d Sess. at 19 (Sept. 
     21, 1998).
       \15\VEOA `' 4(c)(1) and (5).

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